Erosion and Sediment Control on Highway Construction Projects |
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Rodney E. Slater
Federal Highway Administration
26 July 1994
[Federal Register Volume 59, Number 142 (Tuesday, July 26, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-18124] [[Page Unknown]] [Federal Register: July 26, 1994] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 650 [FHWA Docket No. 93-6] RIN 2125-AD08 Erosion and Sediment Control on Highway Construction Projects AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: Section 1057 of the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) requires the Secretary of Transportation to develop erosion control guidelines for States to follow when carrying out Federal-aid construction projects. Pursuant to this authority, the existing erosion and sediment control regulation, issued in 1974, is being updated and modified by the FHWA to reflect current state-of-the-art practices and management techniques. To fulfill the requirements of section 1057, the FHWA is adopting, as guidelines, the American Association of State Highway and Transportation Officials (AASHTO) publication Highway Drainage Guidelines, Volume III, ``Erosion and Sediment Control in Highway Construction,'' 1992. The updated regulation includes a statement recommending that each State highway agency (SHA) apply these guidelines, or their own more stringent guidelines, to develop specific standards and practices for the control of erosion. EFFECTIVE DATE: July 26, 1994. FOR FURTHER INFORMATION CONTACT: Mr. Robin L. Schroeder, Office of Engineering, HNG-23, 202-366-1577; or Mr. Robert J. Black, Office of the Chief Counsel, HCC-31, 202-366-1359; Federal Highway Administration, 400 Seventh Street, SW., Washington D.C. 20590. Office hours are 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except legal Federal holidays. SUPPLEMENTARY INFORMATION: Background Section 1057 of the ISTEA (Pub. L. 102-240, 105 Stat. 1914, 2002) requires the Secretary to develop erosion control guidelines for the States to follow in carrying out federally funded construction projects. It requires that these guidelines not preempt any requirement under State law if such requirement is more stringent than the guidelines. It also requires that these guidelines be consistent with nonpoint source management programs under section 319 of the Federal Water Pollution Control Act (33 U.S.C. 1339) and coastal nonpoint pollution control guidance1 under section 6217(g) of the Coastal Zone Act Reauthorization Amendments of 1990 codified at 16 U.S.C. Sec. 1455b (Pub. L. 101-508, 104 Stat. 1388-299, as amended) (Coastal Zone Act). --------------------------------------------------------------------------- \1\The final guidance document ``Guidance Specifying Management Measures for Sources of Nonpoint Source Pollution in Coastal Waters,'' 84-B-92-002, U.S. Environmental Protection Agency, January 1993, is available in FHWA docket 93-6 for inspection and copying in Room 4232, HCC-10, Office of the Chief Counsel, Federal Highway Administration, 400 Seventh Street, SW., Washington D.C. 20590. --------------------------------------------------------------------------- To satisfy this requirement the FHWA is adopting, as guidance, the AASHTO publication Highway Drainage Guidelines, Volume III, ``Erosion and Sediment Control in Highway Construction,'' 1992. Other minor editorial changes to 23 CFR 650 were also made to correct typographical errors and to change the wording to reflect current practice. A notice of proposed rulemaking (NPRM) proposing to revise 23 CFR 650, subpart B to reference this AASHTO publication was published in the Federal Register on March 1, 1993, at 58 FR 11814. Comments To Docket Nine comments were submitted to the docket. Eight comments were received from SHA's and one comment from a Federal Government agency. The following is a summary of the comments and the FHWA responses: Supportive of Change The North Carolina Department of Transportation (DOT) supported FHWA's proposal to adopt the AASHTO guidelines. The Connecticut Department of Transportation submitted a letter stating that they had no comment concerning the guidelines. Existing Guidelines More Stringent The California Department of Transportation (CALTRANS) did not object to the changes to 23 CFR 650 subpart B. CALTRANS stated that it has adopted requirements and guidelines for erosion control on construction projects that are equal to or more stringent than the guidelines set forth in the AASHTO publication. National Pollutant Discharge Elimination System (NPDES) Requirements The Hawaii Department of Transportation stated that the FHWA should adopt the AASHTO publication. It suggested, though, that the final rule reference the NPDES permit requirements in 23 CFR 650. The NPDES permits are issued under the authority of the Environmental Protection Agency (EPA) in compliance with the provisions of the Federal Water Pollution Control Act (FWPCA), (33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500). The FHWA does not believe that it is necessary to specifically reference NPDES permit requirements in 23 CFR 650. There is a statement in 23 CFR 650.207(b) that the FHWA shall take all reasonable steps to insure that all project designs for control of erosion and sedimentation comply with applicable standards and regulations of other agencies. This would include the NPDES permit requirements as well as any other State or local regulations concerning the control of erosion and sedimentation. Guidelines Four of the SHA respondents had comments concerning specific sections of the AASHTO publication Highway Drainage Guidelines, Volume III, ``Erosion and Sediment Control in Highway Construction,'' 1992. The Nebraska Department of Roads (NDOR) questioned the use of a hydraulic engineer in the design and review of diversion dikes and ditches, and temporary slope drains. The NDOR believed that normal roadway design engineers would be adequate for most hydraulic designs. Hydraulic engineers, the NDOR argued, could be used for the design and review of complex sediment and erosion control systems. While the FHWA agrees that a roadway design engineer may be capable of conducting an adequate hydraulic design, it is important that erosion and sediment control structures are designed properly. These structures should be sized and located based on flows resulting from the design year storm. Proper design of the project requires a working knowledge of hydraulic engineering. While it is not required that a hydraulic engineer conduct the design and review of the erosion and sediment control structures, the design must be conducted by someone competent in hydraulic design procedures. While the FHWA does not agree with the NDOR suggestion that the reference to a hydraulic engineer be removed from the guidance, it does agree that a person who is competent in hydraulic design could adequately fulfill the intent of the guidelines. The Arkansas State Highway Department had no reservations about adopting the AASHTO guidelines, but suggested that a summary be added indicating that the level of effort dedicated to the planning of a project and the development of the erosion control plan be commensurate with size and complexity of project. While the FHWA agrees that more complex projects or projects that may affect sensitive ecosystems such as wetlands, streams, rivers, or other water bodies will include detailed erosion and sediment control plans, every project should be planned, located, designed, and constructed with the intent of limiting the project's effects on the environment. Though projects may differ in the type and extent of the mitigation measures and practices that are implemented, the level of effort put forth to limit the environmental effects for smaller, less complex projects should be equal to that put forth on larger, more complex ones. The Georgia Department of Transportation (GDOT) found the AASHTO document acceptable but had the following minor comments. The GDOT argued that detailed erosion and sediment control plans should not be required as part of the contract document in order to allow the contractor the necessary flexibility to develop a site and operational- specific plan. Instead the GDOT argued that the contract plans should include any extremely sensitive areas such as lakes, wetlands, and streams and sufficient quantities of erosion control devices should be provided as a bid item to mitigate possible erosion and sedimentation effects. According to the GDOT this would allow the contractor and the project engineer the flexibility to customize the erosion control measures employed to the contractor's approach to the work. While the FHWA agrees erosion and sediment control plans should be flexible, both contractors and contracting agencies should be fully aware of the possible environmental effects of their projects. Therefore, all potential environmental impacts associated with erosion and sedimentation, not just those affecting sensitive areas, and the measures and practices required to mitigate these impacts, should be included in the plans, specifications, and special provisions. As previously mentioned, the effectiveness of many erosion and sediment control measures is dependent upon proper design and installation. The FHWA believes it is inappropriate to delegate responsibility for the planning and design of erosion and sediment control measures to the contractor or the project engineer, who may or may not have sufficient design expertise in this area. However, erosion and sediment control plans should be flexible enough to properly fulfill their intended purpose. Accordingly, each erosion and sediment control plan should be periodically evaluated to insure that all necessary controls are being implemented correctly and that unnecessary or improperly installed controls are eliminated or revised. Additions, deletions, or revisions to the erosion and sediment control plan should be reviewed by a person competent in erosion and sediment control design. The GDOT and the Michigan Department of Transportation had minor technical comments on specific design details contained in the AASHTO publication. While the FHWA may agree with some of these design-related comments, the agency emphasizes that the AASHTO publication is intended to provide guidance on the development and implementation of erosion and sediment control measures and practices. The design details that are included are provided as a basis for the development of more detailed project-specific designs. Each State should apply the AASHTO guidelines or its own guidelines, if those guidelines are more stringent, to develop standards and practices for the control of erosion and sedimentation on Federal-aid construction projects. Although the AASHTO guidelines can be used for the development of a statewide implementation program for controlling erosion and sedimentation, each project must be analyzed separately to assure that the most appropriate and effective erosion and sediment control measures and practices are designed, implemented, and maintained. Revisions to Part 650 A comment concerning the revisions to Part 650 was made by the EPA's Office of Wetlands, Oceans and Watersheds. Although the EPA supported the regulatory changes proposed in the NPRM, it had two specific comments. Both concerned the requirement of the ISTEA that FHWA erosion control guidelines be consistent with nonpoint source management programs under section 319 of the FWPCA and coastal nonpoint pollution control guidance issued by the EPA in January 1993, under section 6217(g) of the Coastal Zone Act of 1990. Request to Add a New Paragraph The EPA proposed that the FHWA add a specific paragraph to 23 CFR Part 650 that would quote a management measure contained in the section 6217(g) management measure guidance document (see footnote #1). The management measure at issue is in Chapter 4.II.A., ``New Development Management Measure,'' and concerns reducing the amount of total suspended solids (TSS) leaving the site after construction has been completed and the site is permanently stabilized. It allows for two options to accomplish this goal. Under the first option, after construction, the average amount of TSS (including sediment) leaving the project site would be reduced by 80 percent. The second option would limit the post-development discharge of suspended solids to an amount equal to or less than pre-development conditions. Guidance under section 6217(g) specifies management measures for a wide range of pollutant sources. These include agricultural, forestry, urban area, and marina and recreational boating sources. The management measure cited by the EPA is found under Chapter 4: ``Management Measures for Urban Areas,'' and specifically under Section II, ``Urban Runoff.'' It is intended to be applied by States in areas within the designated coastal zone, under the authority of the Coastal Zone Management Act of 1972 (Pub. L. 92-583, 86 Stat. 1280, as amended), to control urban runoff and treat associated pollutants from new development, redevelopment, and new and relocated roads, highways, and bridges. This management measure deals with the post construction control of erosion and sedimentation. It applies to the reduction of TSS after the project has been fully stabilized. However, during several meetings between the EPA and the FHWA, the EPA emphasized that this reduction can be accomplished through design or by performance. In other words, projects should be designed, using the best available technology, with the intent of reducing or limiting TSS by the specified amount. The intent was not to require the actual measurement of the TSS leaving the project site either before or after construction but to establish guidance relative to project design standards. The section 6217(g) guidance does not apply to storm water discharges covered by the NPDES storm water permit program. This includes all highway construction projects disturbing five or more acres of land. In addition, the section 6217(g) guidance does not apply to States without coastal zone management programs approved by the United States Department of Commerce. The ability to limit or reduce the amount of TSS leaving a specific site will depend on the type of best management practice (BMP) selected. Each BMP has its own strengths and weaknesses, and no one BMP will be applicable to every situation. The effectiveness of the selected BMP can also be highly variable. For example, wet ponds, which are one of the most reliable and attractive BMPs that exist, have a reported sediment removal rate of between 50 to 90 percent.2 Extended detention ponds, or dry ponds, on the other hand, have a sediment removal efficiency of only 30 to 70 percent. Both of these BMPs may need to be supplemented by other controls to conform with the 6217(g) guidance. --------------------------------------------------------------------------- \2\``A Current Assessment of Urban Best Management Practices, Techniques for Reducing Non-Point Source Pollution in the Coastal Zone,'' Metropolitan Washington Council of Governments, 1993. --------------------------------------------------------------------------- Key design factors in determining the effectiveness of particular BMPs include size, configuration, retention time and long term maintenance. The effectiveness of a particular BMP is influenced by a variety of locational factors as well. For example, problems will be encountered if wet ponds are located in areas experiencing long periods of dry weather and/or high evaporation rates, or long periods of cold weather when the pond is frozen. In any case, many aspects related to BMP performance are not well understood and all BMP options will require careful site assessment prior to design. The provisions of 23 CFR part 650, subpart B, deal with erosion and sediment control for all federally funded construction projects nationwide. Their objectives are to control erosion and sedimentation during the construction of highway projects and to assure that highway projects are located, designed, and operated to minimize erosion and sediment damage. The AASHTO guidelines that are being proposed for adoption as guidance include three objectives for erosion and sediment control. These objectives are: 1. Limit off-site effects to acceptable levels, 2. Facilitate project construction and minimize overall cost, and 3. Comply with Federal, State, and local regulations. As stated in the first objective, an intent of these guidelines is not to establish specific design standards but to limit off-site effects to acceptable levels. The determination of what constitutes an undesirable effect is not specified. The intent is to assess possible adverse off-site effects and to implement BMPs as appropriate to minimize these effects. The FHWA agrees with the EPA that a goal of any highway construction project would be to limit the amount of erosion and resulting sedimentation attributable to that project. The FHWA also recognizes that within the coastal zone there may be water bodies that are extremely sensitive to the deposition of sedimentation. However, the FHWA believes that it is inappropriate to set specific design standards for all projects nationwide. The FHWA is amending 23 CFR part 650 to add Sec. 650.211 which provides that projects located within coastal zone management areas, as specified by States with coastal zone management programs approved by the United States Department of Commerce, National Oceanic and Atmospheric Administration, utilize ``Guidance Specifying Management Measures for Sources of Nonpoint Source Pollution in Coastal Waters.'' Request to Incorporate Additional Guidance The EPA also requested that the FHWA add a new paragraph to Part 650 that incorporates, by reference, certain portions of the section 6217(g) guidance. These other management measures, found under Chapter 4.VIII, ``Roads, Highways, and Bridges,'' would include management measures in the areas of planning, siting, and developing roads and highways; bridges; construction projects; construction site chemical control; operation and maintenance; and road, highway and bridge runoff systems. Section 1057 of the ISTEA requires that the guidelines that are developed be consistent with the section 6217(g) guidance. The AASHTO guidelines that the FHWA is now adopting deal primarily with erosion and sediment control during construction. However, the guidelines also state that, ``While much of the effort for control of erosion and sedimentation is expended during the construction phase of highway development, a successful program must address erosion and sediment control during the planning, location, design, and future maintenance phases as well.'' The AASHTO guidelines provide comprehensive guidance concerning the establishment of criteria and controls for erosion and sedimentation. These guidelines provide detailed information that addresses and is consistent with the pertinent sections of the section 6217(g) guidance. However, as previously stated, the FHWA is amending 23 CFR Part 650 to add Sec. 650.211 which provides that highway construction projects covered under the provisions of the section 6217(g) guidance should utilize ``Guidance Specifying Management Measures for Sources of Nonpoint Source Pollution in Coastal Waters.'' Additional Revisions The language of Sec. 650.209(c), dealing with monitoring erosion and sediment control measures and practices, has been revised from that proposed in the NPRM. As set forth in the NPRM, this section implied that if a problem in the effectiveness of the erosion and sediment control measure is indicated, revision of that measure would be required. The intent of this section is to ensure that erosion and sediment control measures are periodically reviewed to assure their effectiveness. This would include maintenance of the existing measures as well as revising those measures that are found to be less than fully effective. The language of Sec. 650.209(c) has been revised to clarify this issue. Rulemaking Analyses and Notices Administrative Procedure Act This final rule is made effective upon publication. The FHWA believes that this final rule is exempt from the 30-day delayed effective date requirement of 5 U.S.C. Sec. 553(d) for the following reason. The FHWA finds that good cause exists to dispense with the 30- day delay because an earlier version of the AASHTO erosion and sediment control publication adopted by this action has already been adopted, as guidance ``to provide valuable information in attaining good design'' in highway construction projects. See 23 CFR 625.5. This final rule simply amends title 23, Code of Federal Regulations, to reference the updated AASHTO guidelines on this subject and it includes this reference under 23 CFR part 650, which specifically addresses erosion and sediment control on highway construction projects. Therefore, this final rule imposes no new requirements or mandates on State highway agencies. Instead, it simply cites the revised AASHTO guidelines with the aim of assisting States in assuring that highway projects are located, designed, and operated to minimize erosion and sediment damage. Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of Department of Transportation regulatory policies and procedures. The FHWA (at 23 CFR 650, Subpart B) and other Federal agencies currently have regulations regarding erosion and sediment control. Adopting the AASHTO guidelines would merely update and reinforce existing policy. Therefore, it is anticipated that the economic impact of this rulemaking will be minimal and a full regulatory evaluation is not required. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (5 U.S.C. 601- 612), the FHWA has evaluated the effects of this rule on small entities. The FHWA concluded that it and other Federal agencies currently have regulations dealing with erosion and sediment control, and adopting the 1992 AASHTO guidelines would merely reinforce existing policy. Therefore, the FHWA hereby certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. Executive Order 12612 (Federalism Assessment) This action has been analyzed in accordance with the principles and criteria contained in Executive Order 12612, and it has been determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Paperwork Reduction Act This action does not contain a collection of information requirement for purposes of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501-3520. National Environmental Policy Act This rulemaking will provide guidance to State Highway Agencies when implementing or developing erosion and sediment control guidelines. This will aid in the control and prevention of nonpoint source pollutants. It does not constitute a major action having a significant effect on the environment, and therefore does not require the preparation of an environmental impact statement pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Regulation Identification Number A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda. List of Subjects in 23 CFR Part 650 Grant programs--transportation, Highways and roads, Soil conservation. In consideration of the foregoing, the FHWA is amending title 23, Code of Federal Regulations, part 650, subpart B as set forth below. Issued on: July 18, 1994. Rodney E. Slater, Federal Highway Administrator. PART 650--BRIDGES, STRUCTURES, AND HYDRAULICS [AMENDED] 1. The authority for part 650 is revised to read as follows: Authority: 23 U.S.C. 109 (a) and (h), 144, 151, 315, and 319; 23 CFR 1.32; 49 CFR 1.48(b), E.O. 11988 (3 CFR, 1977 Comp., p. 117); Department of Transportation Order 5650.2 dated April 23, 1979 (44 FR 24678); Sec. 161 of Public Law 97-424, 96 Stat. 2097, 3135; Sec. 4(b) of Public Law 97-134, 95 Stat. 1699; 33 U.S.C. 401, 491 et seq., 511 et seq.; and Sec. 1057 of Public Law 102-240, 105 Stat. 2002. Subpart B--Erosion and Sediment Control on Highway Construction Projects 2. Part 650 is amended by revising Secs. 650.201, 650.203, 650.205 and 650.209 and by adding Sec. 650.211 to read as follows: Sec. 650.201 Purpose. The purpose of this subpart is to prescribe policies and procedures for the control of erosion, abatement of water pollution, and prevention of damage by sediment deposition from all construction projects funded under title 23, United States Code. Sec. 650.203 Policy. It is the policy of the Federal Highway Administration (FHWA) that all highways funded in whole or in part under title 23, United States Code, shall be located, designed, constructed and operated according to standards that will minimize erosion and sediment damage to the highway and adjacent properties and abate pollution of surface and ground water resources. Guidance for the development of standards used to minimize erosion and sediment damage is referenced in Sec. 650.211 of this part. Sec. 650.205 Definitions. Erosion control measures and practices are actions that are taken to inhibit the dislodging and transporting of soil particles by water or wind, including actions that limit the area of exposed soil and minimize the time the soil is exposed. Permanent erosion and sediment control measures and practices are installations and design features of a construction project which remain in place and in service after completion of the project. Pollutants are substances, including sediment, which cause deterioration of water quality when added to surface or ground waters in sufficient quantity. Sediment control measures and practices are actions taken to control the deposition of sediments resulting from surface runoff. Temporary erosion and sediment control measures and practices are actions taken on an interim basis during construction to minimize the disturbance, transportation, and unwanted deposition of sediment. * * * * * Sec. 650.209 Construction. (a) Permanent erosion and sediment control measures and practices shall be established and implemented at the earliest practicable time consistent with good construction and management practices. (b) Implementation of temporary erosion and sediment control measures and practices shall be coordinated with permanent measures to assure economical, effective, and continuous control throughout construction. (c) Erosion and sediment control measures and practices shall be monitored and maintained or revised to insure that they are fulfilling their intended function during the construction of the project. (d) Federal-aid funds shall not be used in erosion and sediment control actions made necessary because of contractor oversight, carelessness, or failure to implement sufficient control measures. (e) Pollutants used during highway construction or operation and material from sediment traps shall not be stockpiled or disposed of in a manner which makes them susceptible to being washed into any watercourse by runoff or high water. No pollutants shall be deposited or disposed of in watercourses. Sec. 650.211 Guidelines. (a) The FHWA adopts the AASHTO Highway Drainage Guidelines, Volume III, ``Erosion and Sediment Control in Highway Construction,'' 1992,\1\ as guidelines to be followed on all construction projects funded under title 23, United States Code. These guidelines are not intended to preempt any requirements made by or under State law if such requirements are more stringent. --------------------------------------------------------------------------- \1\This document is available for inspection from the FHWA headquarters and field offices as prescribed by 49 CFR part 7, appendix D. It may be purchased from the American Association of State Highway and Transportation Officials offices at Suite 225, 444 North Capitol Street, NW., Washington, DC 20001. --------------------------------------------------------------------------- (b) Each State highway agency should apply the guidelines referenced in paragraph (a) of this section or apply its own guidelines, if these guidelines are more stringent, to develop standards and practices for the control of erosion and sediment on Federal-aid construction projects. These specific standards and practices may reference available resources, such as the procedures presented in the AASHTO ``Model Drainage Manual,'' 1991.\2\ --------------------------------------------------------------------------- \2\This document is available for inspection from the FHWA headquarters and field offices as prescribed by 49 CFR part 7, appendix D. It may be purchased from the American Association of State Highway and Transportation Officials offices at Suite 225, 444 North Capitol Street, NW., Washington, DC 20001. --------------------------------------------------------------------------- (c) Consistent with the requirements of section 6217(g) of the Coastal Zone Act Reauthorization Amendments of 1990 (Pub. L. 101-508, 104 Stat. 1388-299), highway construction projects funded under title 23, United States Code, and located in the coastal zone management areas of States with coastal zone management programs approved by the United States Department of Commerce, National Oceanic and Atmospheric Administration, should utilize ``Guidance Specifying Management Measures for Sources of Nonpoint Source Pollution in Coastal Waters,'' 84-B-92-002, U.S. EPA, January 1993.\3\ State highway agencies should refer to this Environmental Protection Agency guidance document for the design of projects within coastal zone management areas. \3\This document is available for inspection and copying as prescribed by 49 CFR part 7, appendix D. --------------------------------------------------------------------------- [FR Doc. 94-18124 Filed 7-25-94; 8:45 am] BILLING CODE 4910-22-P